Partition vs. Family Settlement: Understanding the Legal Distinctions in Property Division

 A comprehensive analysis of two distinct mechanisms for property distribution in Indian law

Introduction

In Indian property law, families often face the challenge of distributing ancestral or joint property among members. Two primary legal mechanisms facilitate this process: partition and family settlement. While both serve the purpose of property distribution, they operate under different legal frameworks with distinct implications for registration, stamp duty, and enforceability. Understanding these differences is crucial for families seeking the most appropriate method for their specific circumstances.

What is Partition?

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Whether court can consider an unregistered family settlement at the time of deciding temporary injunction?

 Similarly, it is yet to be established whether the alleged family settlement Ex.P-1 is a genuine document or not. It may, however, be noted that in this document there is no mention of oral family settlement alleged to have been arrived at on 24.5.1979. From this document it is also clear that the alleged family arrangement was with regard to the partition of the immoveable properties and was reduced in writing so that it could be used in future at the time of need. Such a document is required to be registered compulsorily under Section 17(1) (b) of the Registration

Act, 1908. In this connection reference may be made to the judgement of the Supreme Court in the case of Tek Bahadur (supra). In this case the Supreme Court held that “it is only when the parties reduce the family arrangement in writing with the purpose of using that writing as proof of what they had arranged and, where the arrangement is brought about by the document as such, that the document would require registration, as it is then that it would be a document of title declaring for future what rights and in what properties the parties possess.” In view of the law laid down by the Supreme Court, I am prima facie of the view that the document Ex.P-1 required registration under Section 17 of the Registration Act as the said document was with regard to the partition of the immoveable properties and was reduced to writing with the purpose of using the same as proof of what the parties had decided in respect of those properties. Since the said document was not registered under Section 17 of the Registration Act, the plaintiff and defendant No. 2 cannot be permitted to rely on this document at this stage.

 HIGH COURT OF DELHI

IAS No. 7532/88, 8290/88, 211/89 3160/90 and 8916/92 in S.NO. 159/86

K.G. Mal Vs Sham Behari Mal 

Sat Pal, J

Decided on : 5th July, 1994

Citation: 1994 SCC OnLine Del 388 : (1994) 30 DRJ 242 : (1994) 55 DLT 137 : PLR (1994) 108 Del 3

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When it is not mandatory to register family settlement?

 If we apply the test as to whether the Khararunama in this case by itself ‘affects’, i.e., by itself creates, declares, limits or extinguishes rights in the immovable properties in question or whether it merely refers to what the appellants alleged were past transactions which have been entered into by the parties, then, going by the words used in the document, they indicate that the words are intended to refer to the arrangements allegedly which the parties made in the past. The document does not purport to by itself create, declare, assign, extinguish or limit right in properties. Thus, the Khararunama may not attract Section 49(1)(a) of the Registration Act.

We notice the following conclusion of the Division Bench of the Madras High Court in A.C. Lakshmipathy and others v. A.M. Chakrapani Reddiar and others AIR 2001 Madras 135: “42. To sum up the legal position xxx xxx xxx (V) However, a document in the nature of a Memorandum, evidencing a family arrangement already entered into and had been prepared as a record of what had been agreed upon, in order that there are no hazy notions in future, it need not be stamped or registered.”

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(S).6141 OF 2021

KORUKONDA CHALAPATHI RAO & ANR Vs KORUKONDA ANNAPURNA SAMPATH KUMAR 

Author: K.M. JOSEPH, J.

Dated: OCTOBER 1, 2021. 

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Can one brother sell the property to a stranger if there is a preferential offer clause in the family settlement?

The question is to whether clause (5) in question is vague and unenforceable. We noticed that it provides that the property in question cannot be sold without concurrence of the three brothers in writing. If it is sold on the agreement of three brothers, the first preference is to be given to both other brothers. When it is stated that the property cannot be sold without concurrence of the three brothers in writing, there cannot be any doubt about its meaning. It means what it says which is that should a brother want to sell the property, the other two brothers must agree in writing. This clause cannot be described as vague. This is different from the aspect as to whether it is a clog on ownership or whether it is otherwise unenforceable but it cannot be described as being vague. The second contention is that when a decision is taken by the brothers permitting sale by a third brother, then, first preference is to be given to both the other brothers. What is intended is that after the written concurrence is obtained for selling in order that property is not sold to a third party/stranger, the other two brothers are given an opportunity to buy that property. This portion of the clause cannot also be described as vague as such. No doubt, it could be argued that the price at which the offer is to be made is not expressly mentioned. We have found that the clause is part of a family settlement between brothers. Courts ordinarily lean in favour of family settlement. Clause (5) itself does not contain an agreement to sell. It only contemplates a preferential offer being treated as a condition precedent to a brother affecting a sale outside of a family to a stranger. The price can only be understood as market price which would be the fair price. Therefore, we are of the view that the finding by the High Court that contract is vague cannot be sustained.

51. The first defendant has sold his share to the second defendant. Under the clause, can the first defendant sell to a stranger? He can sell provided there was a written concurrence by the other brothers for a sale and the offer is made to the other brothers and it does not fructify into a sale for reasons which are not attributable to the brother who wishes to sell. We find that there was an offer to the appellant by the first defendant. He has failed to act upon it. The other brother has no case about offer not being made and he has not raised any dispute over the sale to the second defendant. The perusal of the plaint reveals that the following case has been set up by the plaintiff: “7. that the defendant no.1 was interested in disposing his share in House no.19-A, Chandigarh and the plaintiff was already and willing to purchase the portion of the defendant no.1 and the plaintiff has been expressing his readiness willingness to purchase the share of the defendant no.1 through number of Regd. Letters, telephone and even on FAX. 8. That the defendant no.1 as well as his wife and son has been corresponding and discussing on behalf of the defendant no.1 promising to sell the property to the plaintiff as defendant no.3 did not show any interest to purchase the share of defendant no.1 nor he was interested at all to purchase the 1/3rd share of the defendant no.1 in the property.

9. that the plaintiff was shocked and surprised to learn that the defendant no.1 has sold his 1/3rd share of the property to defendant no.2 a tenant who was already occupying the said portion in a totally secret manner without informing the plaintiff and against the terms and conditions of agreement of family partition and minutes dated 31.3.1982 arrived between plaintiff, defendant no.1 and defendant no.3. the site plan showing the portion sold by the defendant no.1 to defendant no.2 (in red) is attached with this plaint.” (Emphasis supplied)

52. Thus, what is sought is specific performance. The appellant proceeded in the suit on the basis that there is a contract. A contract presupposes an offer which is accepted which means that there was an offer from the defendant. The correspondence, which we have referred to, fortifies us in holding that there was an effective offer and it did not materialize on account of any default on the part of the plaintiff.

53. Now, if the clause is broken down, it involves the following steps. A brother announces his desire to sell his share. He seeks written concurrence of the other brothers. A written concurrence is given. Then, the next step is reached. The selling brother offers to sell it to the other brothers. If they take the offer and the price is agreeable to the parties, sale follows. If the brothers do not wish to buy, the sale to the strangers is permitted. In the above process, in the facts of this case, it is clear that the appellant and the first defendant, without insisting on the written concurrence, went to the stage of offer to brothers. The appellant has led the first defendant to assume, even without a written concurrence, that the sale is permitted. The first defendant has acted clearly on the basis that the requirement of the first stage was not being insisted upon. Otherwise, he could have certainly obtained the concurrence. Having thus acted in the matter, and the second stage having been reached, when for reasons where the fault cannot be attributed to the first defendant, the offer, which the appellant himself describes as reasonable, was

not seized upon by the appellant, the third stage emerged. This meant that it became open to the first defendant to sell to a stranger and which is what he did by it selling it to the second defendant. Even proceeding to enforce the clause, we find that the appellant is clearly estopped from setting up the plea of absence of written consent of the brothers. It would be inequitable, particularly when we are considering the matter in an appeal sourced under Article 136 of the Constitution of India.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 1524-1525 OF 2019

TILAK RAJ BAKSHI Vs  AVINASH CHAND SHARMA

Author: K.M. JOSEPH, J.

Dated: AUGUST 20, 2019.

Citation: (2020) 15 SCC 605.

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Whether a compromise decree regarding land, which is not the subject matter of suit but is part of the settlement between the family members, requires compulsory registration?

The only question in the present appeal is whether a compromise decree in respect of land which is not the subject-matter of suit but is part of the settlement between the family members requires compulsory registration in terms of Section 17(2)(vi) of the Registration Act, 1908. {Para 6}

7. We find that the judgment and decree passed by the High Court is

clearly erroneous and cannot be sustained in law. The parties are

the sons of late Vijendra Singh. As an heir of deceased, the

appellant had a right in the estate left by the deceased. Therefore, it was not a new right being created for the first time when the parties entered into a compromise before the civil court but rather an pre-existing right in the property was recognized by way of settlement in court proceedings.

8. Though, the Gair Mumkin Land (Non-cultivable land) was not

subject-matter of the suit, but the compromise entered between

the parties before the learned Trial Court leading to decree on

3.11.1981 included such non-cultivable land. It is to be noted that

compromise decree can be passed even if the subject-matter of the agreement, compromise of satisfaction is not the same as the

subject-matter of the suit in terms of the provisions of Order XXIII Rule 3 of the Code of Civil Procedure, 1908. 

17. In view of enunciation of law in Bhoop Singh’s case, we find that

the judgment and decree of the High Court holding that the decree

requires compulsory registration is erroneous in law. The

compromise was between the two brothers consequent to death of their father and no right was being created in praesenti for the first time, thus not requiring compulsory registration.

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2336 OF 2021

RIPUDAMAN SINGH Vs TIKKA MAHESHWAR CHAND

Dated: JULY 6, 2021.

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Whether tenant can challenge the validity of the landlord's family settlement on the ground that it is not registered?

 As far as the family settlement is concerned, as held by this

Court in Harbhajan Singh (supra), the petitioners as tenants cannot challenge the same for want of registration. I may only quote from the said judgement as under:

"4. Yet again the counsel for the petitioner has agitated

these issues before me. It is argued the family settlement dated

30.11.1998 is in fact a deed of partition which requires

registration and since is not registered; could not have been

relied upon by the learned ARC. I disagree with the

contention. Firstly, because even if this partition deed is

ignored still the petitioner is a co-owner of the property as has

inherited from common ancestor; and secondly, in Gopal

Kishan vs. Ram Saroop 243 (2017) DLT 66 the Court held a

tenant has no locus standi to challenge the family settlement so

arrived at between the members of the family of the land lord

even if it is not registered. All that the respondent lastly is to

show he is having a better status than the tenant, may be he is

not an absolute owner of the premises. Admittedly, the

petitioner has been paying rent to the respondent."{Para 10}

11. There is, therefore, enough material on record to substantiate

that the respondents were the owner- landlords of the tenanted shops. I therefore, find no merit in the submission of the petitioners in this  regard.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Decision : 16.12.2020

RC.REV. 188/2020

SURENDER KUMAR GUPTA & ORS.  Vs  MAHESH 

CORAM:

 MR. JUSTICE NAVIN CHAWLA

NAVIN CHAWLA, J. (Oral)

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Whether it is mandatory to register a memorandum of family settlement if a family member not having title to the property previously was allocated a particular property?

The settled legal position is

that when by virtue of a family settlement or arrangement,

members of a family descending from a common ancestor or a

near relation seek to sink their differences and disputes, settle

and resolve their conflicting claims or disputed titles once and for all in order to buy peace of mind and bring about complete

harmony and goodwill in the family, such arrangement ought to be governed by a special equity peculiar to them and would be enforced if honestly made. The object of such arrangement is to protect the family from long drawn litigation or perpetual strives which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family, as observed in Kale (supra). In the said reported decision, a threeJudge  Bench of this Court had observed thus: “

9.….. A family arrangement by which the property is

equitably divided between the various contenders so as to

achieve an equal distribution of wealth instead of

concentrating the same in the hands of a few is

undoubtedly a milestone in the administration of social

justice. That is why the term “family” has to be

understood in a wider sense so as to include within its

fold not only close relations or legal heirs but even those

persons who may have some sort of antecedent title, a

semblance of a claim or even if they have a spes

successionis so that future disputes are sealed for ever

and the family instead of fighting claims inter se and

wasting time, money and energy on such fruitless or futile

litigation is able to devote its attention to more

constructive work in the larger interest of the country.

The courts have, therefore, leaned in favour of

upholding a family arrangement instead of disturbing

the same on technical or trivial grounds. Where the

courts find that the family arrangement suffers from a

legal lacuna or a formal defect the rule of estoppel is

pressed into service and is applied to shut out plea of

the person who being a party to family arrangement

seeks to unsettle a settled dispute and claims to

revoke the family arrangement under which he has

himself enjoyed some material benefits. …..”

(emphasis supplied)

In paragraph 10 of the said decision, the Court has delineated

the contours of essentials of a family settlement as follows: “

10. In other words to put the binding effect and the

essentials of a family settlement in a concretised form,

the matter may be reduced into the form of the following

propositions:

“(1) The family settlement must be a bona fide one

so as to resolve family disputes and rival claims by a

fair and equitable division or allotment of properties

between the various members of the family;

(2) The said settlement must be voluntary and

should not be induced by fraud, coercion or undue

influence;

(3) The family arrangement may be even oral in

which case no registration is necessary;

(4) It is well settled

that registration would be

necessary only if the terms of the family arrangement

are reduced into writing. Here also, a distinction

should be made between a document containing

the terms and recitals of a family arrangement

made under the document and a mere

memorandum prepared after the family

arrangement had already been made either for the

purpose of the record or for information of the

court for making necessary mutation. In such a

case the memorandum itself does not create or

extinguish any rights in immovable properties and

therefore does not fall within the mischief of Section

17(2) of the Registration Act and is, therefore, not

compulsorily registrable;

(5) The members who may be parties to the family

arrangement must have some antecedent title, claim

or interest even a possible claim in the property which

is acknowledged by the parties to the settlement. Even

if one of the parties to the settlement has no title

but under the arrangement the other party

relinquishes all its claims or titles in favour of such

a person and acknowledges him to be the sole

owner, then the antecedent title must be assumed

and the family arrangement will be upheld and the

courts will find no difficulty in giving assent to the

same;

(6) Even if bona fide disputes, present or possible,

which may not involve legal claims are settled by a

bona fide family arrangement which is fair and

equitable the family arrangement is final and binding

on the parties to the settlement.”

(emphasis supplied)

Again, in paragraph 24, this Court restated that a family

arrangement being binding on the parties, clearly operates as an

estoppel, so as to preclude any of the parties who have taken

advantage under the agreement from revoking or challenging the

same. In paragraph 35, the Court noted as follows: “

35. … We have already pointed out that this Court

has widened the concept of an antecedent title by holding

that an antecedent title would be assumed in a person

who may not have any title but who has been allotted a

particular property by other party to the family

arrangement by relinquishing his claim in favour of such

a donee. In such a case the party in whose favour the

relinquishment is made would be assumed to have an

antecedent title. …..”

And again, in paragraph 36, the Court noted as follows: “

36. … Yet having regard to the near relationship

which the brother and the soninlaw

bore to the widow

the Privy Council held that the family settlement by which

the properties were divided between these three parties

was a valid one. In the instant case also putting the case

of Respondents Nos. 4 and 5 at the highest, the position

is that Lachman died leaving a grandson and two

daughters. Assuming that the grandson had no legal title,

so long as the daughters were there, still as the

settlement was made to end the disputes and to benefit

all the near relations of the family, it would be sustained

as a valid and binding family settlement. …”

While rejecting the argument regarding inapplicability of principle

of estoppel, the Court observed as follows: “

38. … Assuming, however, that the said

document was compulsorily registrable the courts

have generally held that a family arrangement being

binding on the parties to it would operate as an

estoppel by preventing the parties after having taken

advantage under the arrangement to resile from the

same or try to revoke it. …..”

(emphasis supplied)

And in paragraph 42, the Court observed as follows: 42.

..… In these circumstances there can be no doubt

that even if the family settlement was not registered

it would operate as a complete estoppel against

Respondents Nos. 4 and 5. Respondent No. 1 as also the

High Court, therefore, committed substantial error of law

in not giving effect to the doctrine of estoppel as spelt out

by this Court in so many cases. …”

(emphasis supplied)

 A priori, we have

no hesitation in affirming the conclusion reached by the first

appellate Court that the document Exhibit P6

was nothing but a

memorandum of a family settlement. The established facts and

circumstances clearly establish that a family settlement was

arrived at in 1970 and also acted upon by the concerned parties.

That finding of fact recorded by the first appellate Court being

unexceptionable, it must follow that the document Exhibit P6

was merely a memorandum of a family settlement so arrived at.

Resultantly, it was not required to be registered and in any case,

keeping in mind the settled legal position, the contesting

defendants were estopped from resiling from the stated

arrangement in the subject memorandum, which had recorded

the settlement terms arrived at in the past and even acted upon

relating to all the existing or future disputes qua the subject

property amongst the (signatories) family members despite

absence of antecedent title to the concerned property.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7764 OF 2014

Ravinder Kaur Grewal Vs  Manjit Kaur 

A.M. Khanwilkar, J.

Dated: July 31, 2020.

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Whether unregistered family settlement will operate as estoppel?

However, as observed by this Court in the case of Kale (Supra) that such a family settlement, though not registered, would operate as a complete estoppel against the parties to such a family settlement. In the aforesaid decision, this Court considered its earlier decision in the case of S. Shanmugam Pillai and Ors. v. K. Shanmugam Pillai and Ors. MANU/SC/0398/1972 : (1973) 2 SCC 312 in which it was observed as under:

13. Equitable, principles such as estoppel, election, family settlement, etc. are not mere technical Rules of evidence. They have an important purpose to serve in the administration of justice. The ultimate aim of the law is to secure justice. In the recent times in order to render justice between the parties, courts have been liberally relying on those principles. We would hesitate to narrow down their scope.

9.5 As held by this Court in the case of Subraya M.N. (Supra) even without registration a written document of family settlement/family arrangement can be used as corroborative evidence as explaining the arrangement made thereunder and conduct of the parties. 

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 784 of 2010

Decided On: 01.05.2019

 Thulasidhara  Vs. Narayanappa and Ors.

Hon'ble Judges/Coram:

L. Nageswara Rao and M.R. Shah, JJ.

Citation: (2019)6SCC 409

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Whether amount paid during family settlement or partition of property is taxable?

In view of the aforesaid principles of law, we find that the payment of Rs. 24 crores to Group A is to equalize the inequalities in partition of the assets of M/s. Hind Samachar Ltd. The amount so paid is Immovable property. If such amount is to be treated as income liable to tax, the inequalities would set in as the share of the recipient will diminish to the extent of tax. Since the amount paid during the course of partition is to settle the inequalities in partition, therefore deemed to be Immovable property. Such amount is not an income liable to tax. Thus, the amount of owelty i.e. compensation deposited by Group B is to equalize the partition represents Immovable property and will not attract capital gain. 

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

ITA Nos. 353 and 354 of 2011

Assessment Year: 2007-2008

Decided On: 10.01.2013

 Commissioner of Income Tax-II Vs.   Ashwani Chopra

[Alongwith ITA Nos. 355 and 356 of 2011]

Hon'ble Judges/Coram:

Hemant Gupta and Ritu Bahri, JJ.

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Whether unregistered family settlement is admissible in evidence?

 It is required to be noted that the deed dated
23.04.1971, under which the suit property had gone /devolved in
favour of the Krishnappa, was reduced in writing before the
Panchayat and Panchas, and the same was signed by the village
people/panchayat people and all the members of the family
including even the plaintiff. Though the plaintiff disputed that
the partition was not reduced in writing in the form of document
Exhibit D4, on considering the entire evidence on record and
even the deposition of plaintiff (crossexamination),
he has
specifically admitted that the oral partition had taken place in the
year 1971. He has also admitted that he has got the share which
tellies with the document dated 23.04.1971 (Exhibit D4).
Execution of the document/ Partition Deed/ Palupatta dated
23.04.1971 has been established and proved by examining
different witnesses. The High Court has refused to look into the
said document and/or consider document dated 23.04.1971
(Exhibit D4) solely on the ground that it requires registration and
therefore as it is unregistered, the same cannot be looked into.
However, as observed by this Court in the case of Kale (Supra)
that such a family settlement, though not registered, would
operate as a complete estoppel against the parties to such a

family settlement. In the aforesaid decision, this Court
considered its earlier decision in the case of S. Shanmugam Pillai
and Others v. K. Shanmugam Pillai and Others (1973) 2 SCC 312
in which it was observed as under:
“13. Equitable, principles such as estoppel,
election, family settlement, etc. are not mere
technical rules of evidence. They have an
important purpose to serve in the administration
of justice. The ultimate aim of the law is to
secure justice. In the recent times in order to
render justice between the parties, courts have
been liberally relying on those principles. We
would hesitate to narrow down their scope.
As observed by this Court in T.V.R. Subbu
Chetty’s Family Charities case, that if a person
having full knowledge of his right as a possible
reversioner enters into a transaction which
settles his claim as well as the claim of the
opponents at the relevant time, he cannot be
permitted to go back on that agreement when
reversion actually falls open.”
9.5 As held by this Court in the case of Subraya M.N.
(Supra) even without registration a written document of family
settlement/family arrangement can be used as corroborative
evidence as explaining the arrangement made thereunder and
conduct of the parties. In the present case, as observed
hereinabove, even the plaintiff has also categorically admitted
that the oral partition had taken place on 23.04.1971 and he also

admitted that 3 to 4 punchayat people were also present.
However, according to him, the same was not reduced in writing.
Therefore, even accepting the case of plaintiff that there was an
oral partition on 23.04.1971, the document Exhibit D4 dated
23.04.1971, to which he is also the signatory and all other family
members are signatory, can be said to be a list of properties
partitioned. Everybody got right/share as per the oral
partition/partition. Therefore, the same even can be used as
corroborative evidence as explaining the arrangement made
thereunder and conduct of the parties. Therefore, in the facts
and circumstances of the case, the High Court has committed a
grave/manifest error in not looking into and/or not considering
the document Exhibit D4 dated 23.04.1971.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 784 OF 2010

Thulasidhara  Vs Narayanappa 

M.R. SHAH, J.
Dated:MAY 1, 2019.

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Whether some family members can challenge sale deed executed by one of their family member with their consent?

This Court is of the view that this agreement dated 22.6.1988 and family arrangement dated 1.8.1988 do not run counter to each other in substance. They supplement each other. Nothing contrary can be found from the agreement or the family arrangement. It appears from the record that Anand Kumar Nigam who was appointed as the President of the Executive Committee known as late Smt. Chanda Bai Nigam Smriti Sanstha Chanda Nagar entered into an agreement for sale of a portion of the property with the appellant No.5 and subsequently executed a sale-deed in favour of the appellant No.5. A perusal of the agreement would show that Anand Kumar Nigam claimed that he was executing this agreement in the capacity of the President of the Executive Committee aforesaid. However while signing the document he has stated that he was the Parivarik Karta. The agreement was endorsed and ratified subsequently by all the ten male members of the family who had also signed a family settelement. Therefore, apparently Anand Kumar Nigam was armed with an authority of all the male members to go ahead and execute the sale deed. Accordingly, appellant No.2 Anand Kumar Nigam executed the sale deed in favour of the appellant No.5 on 30.8.1990. Subsequently on 15.10.1990 a notice was sent by the respondents no.1 to 4 challangeing the sale-deed and cancelling the family arrangement. It is apparent from the conduct of the respondents No.1 to 4 that till the stage of execution of sale-deed they had no objection to the agreement and the family arrangement. It appears to this Court that they wanted to abide by the earlier agreements even when the appellant No.2 executed the agreement with appellant No.5. Otherwise there was no reason to say that they had consented to the document and signed. It is, therefore, difficult for this Court to hold that the earlier agreement or the family settlement could not authorise Anand Kumar Nigam to execute the sale-deed for the purpose for which family settlement was made and the agreement to the same effect was executed. In fact there is the equitable consideration that a person or a party acting upon the action of others cannot be permitted to jeopardise his own right when the persons giving express or implied consent changed their mind. In other words a sort of principle of estoppel would operate against the respondents No.1 to 4 to subsequently cancel the agreement or the family settlement unilaterally without any cause. Further the respondents No.1 to 4 cannot act to the detriment of the appellant No.5 because it had purchased the suit property by the sale-deed signed by the appellant No.2 Anand Kumar Nigam at the instance of the other male members of the family. The respondents No.1 to 4 did not object and therefore, they cannot turn around and say that the family arrangement was incorrect. Moreover, even if we hold that the action of appellant No.2 Anand kumar Nigam in transferring a portion of the property in dispute was illegal and unauthorised, the remedy lay in getting the sale-deed set aside rather than questioning the family settlement solemnly agreed to with a avowed purpose of houring Smt. Chanda Bai, the mother of the three elder members of the family.

IN THE HIGH COURT OF MADHYA PRADESH

M.A. No. 1334 of 1997 (J)

Decided On: 28.09.2000

Radhey Saran Nigam  Vs.  Smt. Jyoti Shrivastava & Ors.

Hon'ble Judges/Coram:

S.C. Pandey, J.

Citation: AIR 2001 NOC 116 MP

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To what extent unregistered family settlement can be relied on?

 Under Section 17 of the Registration Act, the documents which purport or operate to create, declare, assign, limit or extinguish any right, title or interest of the value of one hundred rupees and upwards, are to be registered. Under Section 49 of the Registration Act no document required by Section 17 or by any provision of the Transfer of Property Act to be registered shall be received as evidence of any transaction affecting an immovable property. As provided by Section 49 of the Registration Act, any document, which is not registered as required under the law would be inadmissible in evidence and cannot therefore be produced and proved Under Section 91 of the Evidence Act.

17. Even though recitals in the Ex. D22 is to the effect of relinquishment of right in items No. 1 and 2, Ex. D22 could be taken as family arrangements/settlements. There is no provision of law requiring family settlements to be reduced to writing and registered, though when reduced to writing the question of registration may arise. Binding family arrangements dealing with immovable property worth more than rupees hundred can be made orally and when so made, no question of registration arises. If, however, it is reduced to the form of writing with the purpose that the terms should be evidenced by it, it required registration and without registration it is inadmissible; but the said family arrangement can be used as corroborative piece of evidence for showing or explaining the conduct of the parties. In the present case, Ex. D22 panchayat resolution reduced into writing, though not registered can be used as a piece of evidence explaining the settlement arrived at and the conduct of the parties in receiving the money from the Defendant in lieu of relinquishing their interest in items No. 1 and 2.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5805 of 2016 (Arising out of SLP (C) No. 27268 of 2008)

Decided On: 05.07.2016

Subraya M.N. Vs. Vittala M.N. and Ors.

Hon'ble Judges/Coram:

Kurian Joseph and R. Banumathi, JJ.

Citation: 2017(5) BomCR160

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Whether father can enter into agreement of sale in respect of ancestral property?

Moreover, what holds good in respect of the family settlement, holds good even moreso with regard to an agreement of sale, i.e. that an agreement of sale also could not have been entered into by Rohtash if the property was ancestral property in his hands, his son and the other two children having acquired a right in such property by birth.Of course, if due consideration was received by Rohtash, in lieu of such property, then such consideration may have been deemed to be ancestral property, provided the ancestral land was sold for the benefit of his family.

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

RSA-1725-2016 (O&M)

Decided On: 02.06.2017

 Amrit Lal Vs.Savitri and Ors.

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How to ascertain limitation for setting aside alienation made by father?

 Coming to the last question, of limitation, which needs to be considered by this Court, (in the absence of any arguments addressed with regard to the admissibility of any photostat documents), i.e. whether the suit in the current lis was barred by limitation or not.

In this context, firstly I agree with learned counsel for the respondents-plaintiffs that Article 109 of the Schedule to the Limitation Act lays down a limitation of 12 years, beyond which suits relating to setting aside a fathers' alienation of ancestral property cannot be filed.

As per the said Article, the period of limitation is to start running from the date when the alienee, (in this case the appellant), takes possession of the suit property.

Thus, though the decree that the respondents-plaintiffs sought the nullification of is dated 15.05.1995, and seen from that date the suit was instituted about four months and 24 days after limitation would have run out, however, since the period of limitation is to start running from the date that the alienee takes possession of the suit property, I see no flaw in the arguments of learned counsel, that such possession at best can be deemed to have been taken by the alienee on the date that a mutation was entered in his favour qua the ownership of the suit land, on the basis of the decree in his favour. As a matter of fact, unless the contrary is specifically proved, possession would normally be taken after the entry of ownership is entered. Especially where the land alienated is by a co-sharer, in favour of another co-sharer, the earliest date that such deemed possession can be inferred, in the absence of evidence to the contrary, would be the sanction of the mutation entry. The mutation entry admittedly having been made on 19.12.1995, vide mutation No. 826, the limitation to institute the suit would end on 18.12.2007. Thus, the suit in the current lis having been instituted on 09.10.2007, was within limitation by about two months, no evidence having been led to the contrary to show even to this Court, that possession qua the share of Rohtash was already with the appellant earlier.

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

RSA-1725-2016 (O&M)

Decided On: 02.06.2017

 Amrit Lal Vs.Savitri and Ors.

Hon'ble Judges/Coram:

Amol Rattan Singh, J.

Citation:AIR 2017 P&H 130

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Whether it is necessary to remove suspicious circumstances for proof of family settlement?

 The presence of PW-4-Harbans Singh at the time of

execution of the family settlement (Ex.P-1) is not believable. He has

deposed that the document Ex.P-1 was not typed in his presence. He did

not remember that where the document was typed. He further deposed

that the same was signed at petrol pump of Udhampur, but he did not

remember who was the owner of the said petrol pump. He even did not

remember the trade name of said petrol pump. He admitted that no money

transaction took place in his presence. He is the father-in-law of the

plaintiff. Even as per the case of the plaintiff, this family settlement was

executed 2-3 days after his marriage. So, it is not believable that such a

new relative will be roped in such affairs of the family. If in-fact, any

family settlement would have taken place between the parties, it must

have been signed at least by their father, sisters and other family

members, who must be present in the house due to the occasion of the

marriage of the plaintiff. There was also no reason to attest the family

settlement (Ex.P-1) by PW-4-Harbans Singh at the petrol pump, rather

then the house of the plaintiff. The plaintiff also could not tell the name

of the typist and he took the plea that the same was got typed by the

defendant.

25. It is further the settled principle of law that Court can only

act upon on the clear, categoric and unequivocal admission of the parties

to arrive at the conclusion. The vague or the retracted admission carries

no evidentiary value. In the instant case, though initially the defendant in

his part cross-examination has stated that the signatures on the family

settlement looks like his signatures, but in the same breath he added that

these are not his signatures. So, there is no admission on the part of the

defendant that the family settlement (Ex.P-1) bears his signatures. Thus,

the family settlement (Ex.P-1) is surrounded by various suspicious

circumstances, which negates the valid execution thereof. Consequently,

the plaintiff has not been able to establish the genuineness and valid

execution of the family settlement (Ex.P-1) by the defendant.
IN THE HIGH COURT OF PUNJAB AND HARYANA

 AT CHANDIGARH.

R.S.A No.1526 of 2014(O&M)

Date of decision : 01.12.2016

Hargursharan Singh

V

Lt. Col. Hargobind Singh

CORAM : HON'BLE MR. JUSTICE DARSHAN SINGH

Citation: AIR 2017 P&H 3

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When family settlement is compulsorily registrable?

The tenor of the aforesaid document shows that the right in

the property has been created for the first time in favour of the plaintiff

through the family settlement (Ex.P-1), the plot in question was allotted

to defendant from the defence quota being an Army Officer. As already

discussed, it is not established that the plaintiff has paid or contributed

any amount for the purchase of the said plot, so he was not having any

pre-existing rights in the said plot. So, the family settlement (Ex.P-1) was

compulsorily registrable, but the same is an unregistered document, hence

the same is in admissible in evidence and will not convey any right, title

or interest in the suit property in favour of the plaintiff. Thus, he cannot

claim himself to be the owner in possession of the plot in dispute to the

extent of 50% share by the dint of the family settlement Ex.P-1.

IN THE HIGH COURT OF PUNJAB AND HARYANA

 AT CHANDIGARH.

R.S.A No.1526 of 2014(O&M)

Date of decision : 01.12.2016

Hargursharan Singh

V

Lt. Col. Hargobind Singh

CORAM : HON'BLE MR. JUSTICE DARSHAN SINGH

Citation: AIR 2017 P&H 3

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Whether unregistered deed of acknowledgment of partition between brothers is admissible in evidence?

During course of argument, petitioner also relied on

a decision of the Hon’ble Apex Court in the case of Kale and others v,

Deputy Director of Consolidation and others reported in A.I.R. 1976

SC 807. In Paragraph-10 of the above judgment, the Hon’ble Apex Court

held as follows:

“10. In other words to put the binding effect and the

essentials of a family settlement in a concretised form, the

matter may be reduced into the form of the following

propositions:

 (1) The family settlement must be a bona fide one so

as to resolve family disputes and rival claims by a fair and

equitable division or allotment of properties between the

various members of the family; 5

 (2) The said settlement must be voluntary and should

not be induced by fraud, coercion or undue influence:

 (3) The family arrangement may be even oral in

which case no registration is necessary;

 (4) It is well-settled that registration would be

necessary only if the terms of the family arrangement are

reduced into writing. Here also, a distinction should be made

between a document containing the terms and recitals of a

family arrangement made under the document and a mere

memorandum pre pared after the family arrangement had

already been made either for the purpose of the record or for

in formation of the court for making necessary mutation. In

such a case the memorandum itself does not create or

extinguish any rights in immovable properties and therefore

does not fall within the mischief of s. 17(2) of the Registration

Act and is, therefore, not compulsorily registrable;

 (5) The members who may be parties to the family

arrangement must have some antecedent title, claim or

interest even a possible claim in the property 'It which is

acknowledged by the parties to the settlement. Even if one of

the parties to the settlement has no title but under the

arrangement the other party relinquishes all its claims or

titles in favour of such a person and acknowledges him to be

the sole 9 owner, then the antecedent title must be assumed

and the family arrangement will be upheld and the Courts will

find no difficulty in giving assent to the same; 

 (6) Even if bona fide disputes, present or possible,

which may not involve legal claims are settled by a bona fide

family arrangement which is fair and equitable the family

arrangement is final and binding on the parties to the

settlement.”

6. Considering the submission of the learned counsel for the

petitioner, for the factual back drop of this case and after looking to the

decision from paragraph-10 of the Hon’ble Apex Court referred to

hereinabove, this Court finds there has been wrong appreciation on the

question of acceptance of unregistered partition deed by the revisional

authority resulting thereby there is an illegal and erroneous judgment.

 ORISSA HIGH COURT: CUTTACK

 O.J.C.No.1168 of 1997

Dharanidhar Lenka  Vs  Gajendranath Lenka 

Date of Judgment: 25.01.2017

P R E S E N T:

 MR. JUSTICE BISWANATH RATH

Citation:AIR 2017 Orissa 50

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Whether executing court can accept a settlement which took place between decree-holder and judgment debtor after passing of decree?

 He relied upon judgment in the case of Oudh
Commercial Bank Ltd. v. Thakurain Bind Basni Kuer AIR 1939
PC 80 in support of his submission that even a decree does not
stand in the way of parties in arriving at a different settlement. In
the context of power of Executing Court under Section 47 of the
Code of Civil Procedure, the Privy Council in the aforesaid case held
that the judgment-debtor and the decree-holder could enter into an
agreement and bargain for time, in consideration of a reasonable
rate of interest. It is permissible and such agreement can be
accepted by the Executing Court without attracting the criticismthat it has attempted to amend or vary the decree. Even in general
terms, while considering the issue as to whether the parties could
alter or vary a decree by consent, the Privy Council came to an
opinion that the Civil Procedure Code contains no general
restriction of the parties’ liberty of contract with reference to their
rights and obligations under the decree but such agreement may
not be enforceable in all cases through execution proceedings and

in that event the Executing Court will leave the beneficiary party to

bring a separate suit upon the new contract/agreement.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3687 OF 2006

Rajni Sanghi  Vs Western Indian State Motors Ltd. & Ors

Citation:December 01, 2015.
Citation:(2015) 16 SCC631
SHIVA KIRTI SINGH, J.

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Whether registration of family settlement is necessary?

Even though recitals in the Ex.D22 is to the effect of
relinquishment of right in items No.1 and 2, Ex.D22 could be taken
as family arrangements/settlements. There is no provision of law
requiring family settlements to be reduced to writing and

registered, though when reduced to writing the question of
registration may arise. Binding family arrangements dealing with
immovable property worth more than rupees hundred can be made
orally and when so made, no question of registration arises. If,
however, it is reduced to the form of writing with the purpose that
the terms should be evidenced by it, it required registration and
without registration it is inadmissible; but the said family
arrangement can be used as corroborative piece of evidence for
showing or explaining the conduct of the parties. In the present
case, Ex.D22 panchayat resolution reduced into writing, though
not registered can be used as a piece of evidence explaining the
settlement arrived at and the conduct of the parties in receiving the
money from the defendant in lieu of relinquishing their interest in
items No.1 and 2.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5805 OF 2016
(Arising out of SLP(C) No.27268 of 2008
SUBRAYA M.N
V
VITTALA M.N. & ORS.
Citation:2017 (1) Mh.L.J. 21

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